Ellawendy v. Wormuth
- William Orrick
- 3:21-cv-06618
- U.S. District Court · Northern District of California
- 2
In Ellawendy v. Wormuth, Judge Orrick dismissed the WPA claim without prejudice, denied restoring Title VII claims, and denied Ellawendy’s disqualification request.
Abdel Fatah Ellawendy’s claims were not revived. The WPA claim and the case were dismissed without prejudice, while the Title VII claims remained barred and his request to disqualify Judge Orrick was denied.
What happened
In Ellawendy v. Wormuth, pro se plaintiff Abdel Fatah Ellawendy challenged his termination as a civilian instructor at a Department of Defense school. He alleged violations of Title VII and the Whistleblower Protection Act, including a hostile work environment and retaliation.
The court had previously dismissed the Title VII claims because earlier litigation barred them and allowed Ellawendy to amend only the whistleblower claim. Ellawendy later sought to withdraw that claim and restore the Title VII claims after explaining that he had asked the Merit Systems Protection Board to review its decision.
Judge William H. Orrick dismissed the whistleblower claim without prejudice because the administrative decision was not final and the court therefore lacked jurisdiction. He denied the requests to restore the Title VII claims, denied Ellawendy’s request to disqualify him, terminated the government’s dismissal motion as moot, and dismissed the case without prejudice.
The detailed version
- Ellawendy v. Wormuth · No. 3:21-cv-06618
- William Orrick
- Mar. 16, 2023
Background
Pro se plaintiff Abdel Fatah Ellawendy sued Christine E. Wormuth concerning his termination as a civilian instructor at a Department of Defense school. His original complaint asserted claims under Title VII and the Whistleblower Protection Act (WPA), alleging a hostile work environment and retaliation.
The court previously dismissed the Title VII claims as barred by res judicata, meaning claim preclusion based on earlier litigation. It also dismissed the WPA claim because Ellawendy had not alleged that he exhausted the required administrative process before the Merit Systems Protection Board (MSPB). The court allowed him to amend only the WPA claim. After he filed an amended complaint, Wormuth moved to dismiss again.
Petitions for reconsideration
At oral argument on the dismissal motion, Ellawendy argued for the first time that he had appealed the MSPB’s decision and that the decision was therefore not final. He then petitioned to withdraw his WPA claim and sought to restore his Title VII claims. The government did not oppose withdrawing the WPA claim but opposed restoring the Title VII claims.
Ellawendy also filed another petition seeking to restore the Title VII claims based on the court’s decision to relate this case to another case involving his termination and related events. He separately moved to disqualify Judge Orrick, relying on his dissatisfaction with an adverse ruling and his belief that the court had ignored his motions.
Rulings
The court dismissed the WPA claim without prejudice under Federal Rule of Civil Procedure 41(a)(2). Because Ellawendy had asked the MSPB to review its decision and there was no final MSPB order, the court held that it lacked jurisdiction over the WPA claim.
The court denied Ellawendy’s requests to restore the Title VII claims. It held that those claims remained barred by res judicata and that the status of the MSPB’s decision did not affect that conclusion. The court also denied the petition concerning the related case and denied the motion to disqualify Judge Orrick.
Because the WPA claim was the only remaining claim, the court terminated Wormuth’s motion to dismiss as moot and dismissed the case without prejudice. The Clerk was directed to close the file.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.